Noko J
2
K2012020306 (Pty) Ltd First Plaintiff
STUART ALAN JOHN SAUNDERS Second Plaintiff
And
GERT LOURENS DEWET N.O. First Defendant
MARYNA ESTELLE SYMES N.O. Second Defendant
MARC BRADLEY BEGINSEL N.O. Third Defendant
GERT LOURENS DE WET Fourth Defendant
MARYNA ESTELLE SYMES Fifth Defendant
MARCC BRADLEY BEGINSEL Sixth Defendant
SENEKAL SIMMONS INCORPORATED ATTORNEYS Seventh Defendant
KAAP VAAL TRUST PTY LTD Eighth Defendant
ZEBRA LIQUIDATORS PTY LTD Ninth Defendant
BEGINSEL TRUSTEES Tenth Defendant
MASTER OF THE HIGH COURT Eleventh Defendant
Coram: Noko J
Heard on: 8 April 2026
Delivered on: 30 July 2026
Summary: Application for leave to amend – Respondents’ contentions that the
amendment is a nullity and that the proposed amendment is
susceptible to exception - objections are unsustainable.
- .
____________________________________________________________________
ORDER
____________________________________________________________________
The following order is made:
1. Leave to amend is granted;
2. The Respondents are ordered to pay costs , including costs of counsel on scale
B.
Noko J
3
____________________________________________________________________
JUDGMENT
____________________________________________________________________
NOKO J
Introduction
[1] The applicants instituted an application on 3 March 2025 seeking leave to amend
their plea (including the special plea) dated 22 August 2024 ( “the August plea ”). The
respondents oppose the application on two grounds. First, they contend that the August
2024 plea is a nullity because it was not filed in accordance with the Uniform Rules of the
Courts ( “Rules”). Second, they contend that the proposed amendments are, inter alia ,
potentially excipiable.
Background
[2] The applicants served notice of intention to amend their August 2024 plea by:
“1. Deleting paragraphs 1 to 7,
2. By adding the following paragraph between paragraph 11 and 12:
“11A alternatively, the plaintiffs plead that success in the arbitration was achieved
on 10 October 2019 when a declaratory order was granted in the Johannesburg
High Court under case number 30239/2019. The claim was available to the
plaintiff on 10 October 2019”
3. By deleting the full stop at the end of paragraph 12 and adding the following at the
end of paragraph 12:
“alternatively, 10 October 2022.”
[3] Given the respondents’ contention that the August 2024 plea does not exist, it is
necessary to first set out the background to the August 2024 amendment. On 19 June 2024,
the applicants served their notice of intention to amend their plea, dated 11 March 2024.
Subsequently, the respondents’ legal representative wrote to the applicants requesting that
they serve their amended plea, failing which a notice of bar calling for the amended plea
would be served. The respondents then served a notice of bar on 19 August 2024,
Noko J
4
demanding the amended plea within five days of its service. The applicants served their
amended plea on 22 August 2024.
[4] The respondents contend that the August 2024 plea should be construed as a notice
to amend under Rule 28(1) of the Rules, rather than as the amended pages contemplated
under Rule 28(7). However, as set out below, the applicants contend that the respondents'
contentions are unsustainable.
Contentions and submissions.
[5] The amendment seeks first to delete the special plea of lis pendens , which was
raised before the two respondents’ actions were consolidated under the above case
numbers. The suggested deletion is not opposed, and the application for the amendment is
therefore granted.
[6] Regarding the challenge to the August 2024 amendment, Mr Saunders, representing
himself and the first respondent, contends that the notice of bar served demanding the
amended plea was served in error, and that the document served by the applicants on 22
August 2024 is a notice of intention to amend, not the amended pages. Accordingly, the
applicants should have afforded the respondents a 10-day period, as contemplated in Rule
28(3), within which to decide whether to oppose the proposed amendments. The filing of
the amended pages would then have followed. To this end, Mr Saunders argued that the
applicants failed to comply with the Rules and that the Court must afford them a 10 -day
period to file their amended pages.
[7] Mr Saunders further argued that if the impugned August 2024 amendment is found
compliant, the respondents would suffer prejudice by being denied their right to
consequential amendment under Rule 28(8) of the Rules.
[8] The applicants retorted that correspondence inter se and the notice of bar clearly
required them to serve amended pages, and they duly complied. Furthermore, the
respondents have informed the applicants that they do not object to the proposed
respondents have informed the applicants that they do not object to the proposed
amendment. Consistent with the knowledge that the document served was an amended
plea, the respondents referred to it in their application for summary judgment. This is also
Noko J
5
consistent with the requirement that applications for summary judgment can only be
launched after a plea has been filed, and this was done after the delivery of the August 2024
plea and special plea.
[9] Finally, the applicants contended that the respondents' right to file a consequential
amendment is not trampled upon, as they may amend their pleadings at any time before
judgment. To this end, the argument continued, there is no prejudice or compromise of the
respondents' right to file a consequential plea, as alleged by the respondents , and the
objection to the amendment should be dismissed.
[10] I have considered submissions from both parties. Noting that the August 2024 plea
is clearly titled an amended plea and that it is also referred to in the correspondence
exchanged between the parties and in the application for summary judgment, I find that it
was indeed delivered in accordance with Rule 28(7). Accordingly, the averments that the
notice of bar was issued in error and not rectified in terms of the rule are inconsequential.
The respondents' contention that the August 2024 plea is non-compliant and that the notice
to amend it dated 11 February 2025 is a nullity is therefore unsustainable and bound to fail.
[11] The respondents contended that, if the Court finds the August 2024 plea compliant,
the proposed amendment to add an alternative special plea of prescription is excipiable.
This is based on the applicants’ contention that success in the arbitration was neve r
achieved, as the declaratory order granted on 10 October 2019 was rescinded and success
would never be achieved, respondents argued.
[12] The applicants contend that the respondent's cause of action relates to consulting
services provided between 9 December 2013 and 15 January 2018. Payment for such
services would have been claimable by 30 January 2018, the date on which the debt is due
under section 12(1) of the Prescription Act. 1 Under section 11(d) of the Prescription Act,
under section 12(1) of the Prescription Act. 1 Under section 11(d) of the Prescription Act,
the debt would prescribe after 3 years, by the end of January 2021 at the latest. The
respondents’ summons was served only on 13 December 2023 and has therefore
prescribed.
1 68 of 1969.
Noko J
6
[13] The applicants contend that, in the alternative, the debt arose on 10 October 2019,
when a declaratory order was made, the date on which the success was achieved.
Accordingly, the respondents’ claim prescribed 3 years from that date.
[14] The applicants sought the Court's permission to amend, contending that the sole
purpose of the amendment is to add a date. Further, the legal position is axiomatic that
unless an amendment is mala fide, it will prejudice the other party, and that prejudice
cannot be cured by an order of costs or a postponement.
[15] The respondents contend that the proposed amendment would be susceptible to an
exception on the ground that it is vague and embarrassing and fails to set out a cause of
action. The respondents’ contention rests on the applicants’ having categorically asser ted
that success was not achieved and would never be achieved, since the declaratory order of
10 October 2019 was rescinded and attempts to appeal it were unsuccessful, and that they
may not at the same time contend that success was achieved, as this would be contradictory.
Mr Saunders further argued that no evidence can be presented to prove the applicants’
averments. To this end, he argued that the legal position, as set out in McKelvey v Cowan
NO2, is that “[a] pleading is only excipiable on the basis that no possible evidence led on
the pleadings can disclose a cause of action”. 3 In the absence of such averments, Mr
Saunders argued, the plea would be vague, embarrassing and difficult for the respondents
to plead.
[16] Mr Saunders further contended that the right to payments under the Additional
Disbursement Agreement arose either from the success achieved through arbitration, or,
upon the receipt of payment by the first to third respondents. A further condition is that the
Liquidation and Distribution account has not been approved. To the extent that none of
these can be shown by any evidence, the plea becomes irrelevant, as the success was
these can be shown by any evidence, the plea becomes irrelevant, as the success was
rescinded on 28 July 2021.
2 1980 (4) SA 525 (Z).
3 Id at 526D-E.
Noko J
7
[17] In reply, the applicants contend that the allegations set out in the proposed
amendment have already been stated in the previous plea and that the sole purpose is to
add the date. If they were excipiable, the respondents would already have excepted th at
previous plea. In any event, the averments regarding the achievement of success are
predicated on the respondents’ averments that success has been achieved . And adding or
inserting an alternative date cannot attract excipiability. The contention that the applicants
are approbating and reprobating is unsustainable, since the amendment is couched in the
alternative, applicants argued.
[18] In addition, the applicants continued, this Court cannot be invited to determine the
veracity of any proposed special plea, if any, or the alleged shortcomings and should
therefore defer to the trial court. The applicants referred to Marsh4 at para 11, where the
Court held that adjudication of the dispute about prescription is better left to the trial court.
Issue for determination
[19] Whether the amendment was effected and whether the special plea is excipiable.
Legal principles and analysis
[20] It is settled in our jurisprudence that a court adjudicating on an application to amend
has discretion, which must be exercised within the bounds of the law. 5 It was stated in
Taraway Empire6 that
“[I]n respect of amendments to pleadings generally, it must be emphasized that the object
of the court is to do justice between the parties, and where a mistake as to the true facts are
made on the pleadings, the court will look at what circumstances actually occurred between
the parties. Furthermore, the court hearing an application for leave to amend, or faced with
a proposed amendment to a pleading, retains an unfettered discretion, which must be
exercised judicially in view of the facts and circumstances of a matter.7
[21] Correcting an error in the pleading or withdrawing a notice is governed by the rules,
[21] Correcting an error in the pleading or withdrawing a notice is governed by the rules,
and the respondents should have availed themselves of them in a timely manner. However,
4 East and West Investments P/L and Others v Marsh (Pty) Ltd [2025] ZAGPPHC 147.
5 See Robinson v Randfontein Estates Gold Mining Co Ltd 1921 AD 168 at 243.
6 Taraway Empire Pty Ltd v Total South Africa (Pty) Ltd (6639/2021) [2026] ZAWCHC (28 July 2026)
7 Id at para 26 where the following cases were quoted with approval: Morant v Roos 1911 TPD 1092 at 1102
and Ciba-Geigy (Pty) Ltd v Lushoff Farms (Pty) Ltd 2002 (SA) 447 SCA at 462
Noko J
8
leaving the matter for more than seven months and having pleadings exchanged pursuant
thereto may make it tedious to reverse all. The horse has bolted. In any event , as the
applicants have submitted, the respondents have a recourse of amending their papers if
necessary. It was held in Zarug8 that “[n]o matter how negligent or careless the mistake or
omission may have been and no matter how late the application for amendment may be
made, the application can be granted if the necessity for the amendment has arisen through
some reasonable cause, even thou gh it be only a bona fide mistake”.9 In the end, no
prejudice would visit the respondents, and any such prejudice is not capable of redress
through an order of costs or a postponement.
[22] On the facts as alleged/pleaded by the respondent s that the success has been
achieved, then the claim may be found to have prescribed. The special plea is in the
alternative, and to this end, the contention that there is a contradiction is unsustainable. It
was stated that contradictions would fall foul of regular pleadings in Trope10, where the
court says that: “[i]t follows that averments in the pleading which are contradictory and
which are not pleaded in the alternative are patently vague and embarrassing; one can be
left guessing as to the actual meaning (if any) conveyed by the pleading. ”11 (“underlining
added”).
[23] The applicants referred to Marsh 12 where the court held that the dispute relating to
prescription is better left to the trial court. It was also held in Compass Insurance13 that as
long as a tria ble issue is raised in the pleadings, an amendment would be granted even
where a party may raise an exception . The prejudice alleged by the respondents can be
cured by an order of costs and may still be amended at any time, as submitted by the
applicants.
8 Zarug v Parvathie NO 1962 (3) SA 872 (D).
applicants.
8 Zarug v Parvathie NO 1962 (3) SA 872 (D).
9 Id at 876B-D. See also para 876A-B where the court held that “… the Court will allow an amendment, even
though it may be a drastic one, if it raises no new question that the other party should not be prepared to
meet.”
10 Trope v South African Reserve Bank 1992 (3) SA 208 (T).
11 Id at 209D-F.
12 Above fn 5.
13 Compass Insurance Company Ltd v Cobus Smit Projekbestuur CC and Another2019 (1) SA 413 (WCC).
Noko J
10
Appearances:
For the Applicants: L Choate with C Hammick instructe d by
Webber Wentzel Inc.
For the Respondents: SAJ Saunders, Trust Account Advocate in
terms of section 34(2)(b) of the Legal Practice
Act 28 of 2014.